Concurring opinion:
CARLISLE, J.I concur. If a police officer persuades a defendant to take a breathalyzer test by misinforming him that the consequences of refusal are more severe than provided by law, the test results should be suppressed.
But most of the argument presented in this case swirled around the issue of whether there is a right of refusal. Judge Colbath is not the first judge to complain that the statutes dealing with DUI, implied consent, testing, contained in Chapter 316 and Chapter 322, are a patchwork quilt of amendment which, on first reading seem to be contradictory and are difficult to understand. Indeed the headline to 316.1932 F.S. talks of “right to refuse.” It is really time to tailor up a new garment.
Be that as it may, careful study of the statute and the cases interpreting it leave no doubt that no one has a right, constitutional or otherwise, to refuse a breathalyzer test. The results of the test are non-testimonial. Schmerber v California, 484 U.S. 757, and the cases cited therein, stand for the proposition that a blood sample for the purpose of determining alcohol content, fingerprints, finger nail scrapings, are admissible in evidence even if they had to be taken from the defendant by force while he was kicking and screaming. Suspects can be forced to *45wear clothing, recite words, etc. without violating any constitutional right. South Dakota v Neville, 459 U.S. 553, affirms this proposition with respect to DUI cases.
The notion that Section 316.1932 F.S. creates a statutory right to refuse is absurd. The statute prescribes a penalty for refusal. To take that argument to its logical conclusion is to say that if one can do the time one has the right to do the crime.
In State v Young, (5DCA 1985) 483 So.2d 31, it was held that the option to refuse to submit to the test provided in Section 316.1932(1) (a), F.S. cannot be equated with a legal right because the exercise of that option involves a penalty and can also be used as inculpatory evidence in the driver’s criminal trial. No doubt, the Legislature can and very well may make criminal the refusal to submit to a breathalyzer test:
“It is a matter peculiarly within the legislative sphere to establish penalty provisions for non compliance with (the implied consent law).” Sambrine v State, (Fla. S.Ct. 1980 at 549) 386 So.2d 546.
To the extent the statute appears to create an option the Florida Supreme Court recognized that the Legislature
“may have concluded that it was preferable to enforce the implied consent law through (the imposition of a penalty for refusal) than mandate that its law enforcement officials be required to physically restrain every individual who refused to submit to the test.” Sambrine, supra.
In other words, the Legislature determined that the results of the test were not of sufficient value to require the police to wrestle with every defendant who refuses. The Legislature merely imposed a penalty for refusal. Note the difference in cases involving death or serious bodily injury. Section 316.1933 F.S. allows the police to use reasonable force to require submission to the administration of a blood test.
It should also be noted that State v Young, supra, holding that there is no right to refuse to take a breath test, was a petition for Writ of Common Law Certiorari. The Fifth District held that the circuit court departed from the essential requirements of law when it held there was a right to refuse.
At best, it could be argued only that the implied consent law restricts officers from using physical force to extract breath samples in garden variety DUI cases. That is nothing more than a simple legislative decision that the game is not worth the candle. It has determined that the results of a blood alcohol test are sufficiently important in the *46case of death or great bodily injury to warrant the use of force. I suspect in the not too distant future a test involving a mere pinprick will be developed. Then the Legislature may very well authorize the use of reasonable force in all DUI cases. Until that day, however, officers must content themselves with a refusal which is admissible in evidence against the defendant. If they overstate the consequences of refusal they are left with nothing.